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In re C.G.B.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

September 7, 2017

IN THE INTEREST OF C.G.B., A CHILD

         On appeal from the 347th District Court of Nueces County, Texas.

          Before Justices Rodriguez, Contreras, and Benavides.

          MEMORANDUM OPINION

          GINA M. BENAVIDES, JUSTICE.

         "Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties and powers normally existing between them." In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.-Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). While parental rights are of a constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). "A parental rights termination proceeding encumbers a value 'far more precious than any property right' and is consequently governed by special rules." In re E.R, 385 S.W.3d 552, 555 (Tex 2012) "Termination of parental rights, the total and irrevocable dissolution of the parent-child relationship, constitutes the 'death penalty' of civil cases" In re KML, 443 S.W.3d 101, 121 (Tex 2014) (Lehrmann, J, concurring). "Whereas most termination cases result from [an investigation] and involve the Department [of Family and Protective Services], which has standards and guidelines to follow prior to attempting termination, this case was not [referred to the Department] and is a private dispute." In re N.L.D., 412 S.W.3d 810, 822 (Tex. App.-Texarkana 2013, no pet.).

         A court may order the termination of a parent-child relationship if it shown by clear and convincing evidence that a parent has met at least one of the statutory factors listed in section 161.001 of the family code, coupled with an additional finding by clear and convincing evidence that termination is in the child's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)-(2) (West, Westlaw through 2017 R.S.); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002) (noting the two-prong test in deciding parental termination and that one act or omission of conduct satisfies the first prong); In re E.M.N., 221 S.W.3d 815, 820-21 (Tex. App.-Fort Worth 2007, no pet.). "Clear and convincing evidence" is defined as the "measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007 (West, Westlaw through 2017 R.S.). "This intermediate standard falls between the preponderance of the evidence standard in civil proceedings and the reasonable doubt standard of criminal proceedings." In re L.J.N., 329 S.W.3d at 671. This heightened standard of review is mandated not only by the family code, see Tex. Fam. Code Ann. § 161.001, but also the Due Process Clause of the United States Constitution. In re E. N.C. , 384 S.W.3d 796, 805 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 753-54 (1982)). "It is our obligation to strictly scrutinize termination proceedings and strictly construe the statute in favor of the parent." In re L.J.N., 329 S.W.3d at 673.

         I. Issues Presented

         This accelerated appeal concerns an order terminating appellant LMC's (Mother) parental rights to CGB (Child), her 11-year-old daughter.[1] See Tex. R. App. P. 28.4. By three issues, Mother asserts that: (1) the evidence was factually and legally insufficient to support termination of her parental rights; (2) she was not effectively represented by counsel during the proceedings; and (3) the relief granted by the trial court exceeded the relief requested by the appellees, TB's (Father) and MLB's (Paternal Grandmother) pleadings. We reverse and remand.

         II. Background

         A. Procedural History

         Child was born on July 14, 2005. Mother and Father divorced on May 26, 2009. Both parents were appointed joint managing conservators, with Mother designated as the parent entitled to determine the Child's residence. On May 5, 2010, Paternal Grandmother filed a petition in intervention, asking to be appointed sole managing conservator of Child and requesting that Mother be ordered to pay child support. Paternal Grandmother alleged Mother was exhibiting behavior outside of her workplace that caused an involuntary mental commitment and that Mother had been hospitalized for mental illness one other time in April 2010. Father was in agreement that Paternal Grandmother should take custody of Child. On May 26, 2010, Paternal Grandmother and Mother were appointed temporary joint managing conservators, with Paternal Grandmother being able to determine Child's residence. Mother was given supervised visitation of Child with Maternal Grandmother as the supervisor. Mother was also ordered to pay child support and to seek psychological help.

         Paternal Grandmother filed a motion to modify prior orders on June 25, 2010 claiming that Mother (1) had violated the court's orders by not keeping Paternal Grandmother informed of her current address and employment, (2) went within 100 yards of Child's school, and (3) went within 100 yards of Paternal Grandmother's business. Paternal Grandmother asked for Mother's visitation to cease until further order of the trial court, and after a hearing on the motion in which the trial court deferred its ruling, the trial court added an additional temporary order preventing Mother from texting or calling Paternal Grandmother and Father or exercising visits with Child until further order from the trial court. It appears this was later amended and visitation between Mother and Child resumed.

         On August 25, 2011, temporary orders were again modified by the trial court naming Father a joint managing conservator with primary care and Mother as temporary joint managing conservator. Paternal Grandmother was dismissed as a party from the case. Mother's visitation was to be supervised by Father's current spouse, RB (Wife). Mother was ordered to pay child support, continue treatment for mental illness, and attend parenting classes.

         On January 10, 2012, after an alleged altercation between Mother, Father, and Wife, Father filed a motion to modify which asked to suspend Mother's visitation and possession rights. In addition, Paternal Grandmother filed an amended motion in intervention and requested to be appointed a joint managing conservator in place of Mother. At the hearing on January 18, 2012, the trial court appointed Father, Mother, and Paternal Grandmother joint managing conservators of Child. Mother was granted visitation to be supervised by Katy Adams, a licensed professional counselor, ordered to pay child support, and ordered to comply with the doctor's recommendations for treating her mental illness.

         Subsequently all parties filed various motions to modify, with Mother asking for standard visitation and Father and Paternal Grandmother seeking enforcement of child support and sanctions. On March 4, 2013, Father and Paternal Grandmother were appointed joint managing conservators with Mother being granted possessory conservatorship. Pursuant to modified orders, Mother's visitation was to be supervised by Angela Frost, [2] both parents were ordered to pay a portion of Frost's supervision costs (Mother was to pay $70, while Father was to pay $30 for each visit), and Mother was ordered to pay Father child support.[3]

         In early 2014, Father and Paternal Grandmother filed motions to enforce the child support order, while Mother filed motions to modify visitation and the current orders that were in place. Mother filed a notice of nonsuit on November 12, 2014, signed by her former counsel who withdrew that same day. However, Mother's current counsel had filed a notice of appearance in October 2014. In November 2014, a judgment for the child support arrears was also granted by the trial court against Mother.

         In April 2015, Mother again filed a motion to modify the current orders. In June 2016, Father and Paternal Grandmother filed their original petition to terminate parental rights, claiming that Mother: (1) left Child with a non-parent with no intent to return; (2) endangered the physical or emotional well-being of Child; and (3) constructively abandoned Child, and that termination was in Child's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(A), (E), (N), & (b)(2). Through her counsel, Mother filed an answer to the petition to terminate Mother's rights. In January of 2017, the trial court held a bench trial on the petition to terminate. The trial court found no abandonment by Mother, but found that Mother had violated section (E) of section 161.001(b)(1) and that termination of Mother's parental rights was in the best interest of Child. See id. (b)(1)(E) & (b)(2).

         B. Trial on the Merits

         1. Mother's Witnesses

         During the bench trial, Mother called Paternal Grandmother, who testified that she does not want Child to have a relationship with Mother and considered Wife to be Child's mother. She also stated that Child has lived with Father since May 2011 and that Father is a wonderful parent. Paternal Grandmother admitted that Father had a prior criminal history and had attended drug and alcohol rehabilitation programs two times in the past. Paternal Grandmother spoke of an incident where Mother caused a disturbance at Paternal Grandmother's business years prior, but admitted that Father had also vandalized property at her business previously because he was "sick" with his addictions and had been terminated from his employment at her business. Paternal Grandmother testified that Father currently works for her business and is in a good place because of Wife. Paternal Grandmother also felt that Mother had "too many opportunities, " worked as an exotic dancer at multiple establishments in the local area, posted troubling information on her social media accounts, and had violent tendencies. Paternal Grandmother admitted that she last spoke to Mother in December 2013 and has no idea what Mother does anymore. She was also aware that visitation with Adams was cost-prohibitive for Mother. However, Paternal Grandmother stated Child sees Frost for anxiety and the residual effect of Mother's "serial abandonment" and believed all of Child's issues stem from Mother.

         Mother's next witness was Father. Father admitted to being fired in early 2010 for breaking windows at his mother's business. He stated he was reinstated for work in 2011 and currently works at Paternal Grandmother's business in a management role. Father believed that Paternal Grandmother liked Mother when he and Mother were first married. Father testified that Mother and Wife also got along well until an incident outside a local sushi restaurant in 2012, where Mother threatened Wife. Father stated he follows the court orders, has not spoken to Mother since 2011 at a visitation with Adams, and has not attempted contact with Mother since 2013. Father testified to a prior DWI conviction, drug use including cocaine, methamphetamines, steroids, alcohol, and prescription medication, and to spending time at substance abuse treatment facilities. He said in 2011 he turned his life to God and "is on a better path." Father admitted to a relapse with alcohol in 2012, when he was experiencing marital discord with Wife. Father admitted that Child was living with him when this relapse occurred, but stated he left the home when he consumed alcohol.

         Mother called her sister ("Beth") as a witness. Beth stated she visits Mother often and knows Mother misses Child. Beth said Mother is a wonderful parent to her young son, "Bob", [4] and that Mother had truly changed since 2010. Beth also testified regarding an assault that occurred between herself and Mother in early 2013. Beth believed Mother was "drugged" at an outing and that was the cause of the violence between them. Beth testified the assault occurred before Bob was born, and Beth refused to press charges.

         Multiple family members and friends of Mother testified regarding her parenting of Bob, although many of them had never met Child. One witness testified that, even though he knew Mother's history, he believed Mother had changed and stated it was "time to re-establish" the relationship because people can "heal and mature." Mother's cousin "Claire" testified and stated that Mother had put her issues behind her and talks about Child frequently. Claire testified that after Maternal Grandfather was in a bad automobile accident, the family became close and had been together frequently. Mother's other cousin, "Mia", stated that Mother was outstanding with Bob and that Mother has a strong family who would "embrace" Child if she was allowed to see Mother. Mia testified that she was not aware of any court orders or past psychiatric issues, but stated she assumed the information Paternal Grandmother's attorney was referring to was not as clear cut as it sounded.

         The Maternal Grandmother spoke of her close relationship with Mother. She feels Mother is a wonderful parent and helps babysit Bob when Mother needs assistance. The Maternal Grandmother stated that she has not seen Child in over three years and everyone in their family misses Child very much. She feels it would be in Child's best interest to spend time with Mother. On cross-examination, the Maternal Grandmother stated she believes Father's family is not allowing visits, she did not know about the prior non-suit filed by Mother, and that the visitation with Child stopped when Bob was born. The Maternal Grandmother testified about how she was appointed to supervise visitation between Mother and Child, but "things"-such as vandalism, property being trashed, and being stalked-started happening around her home after she was appointed by the trial court and she was frightened, so she asked to be removed as the supervisor.

         Mother testified that she currently works doing data entry, but formerly worked as an exotic dancer. Mother stated she is current with her child support obligation to Child, and although she has used drugs in the past, she no longer uses. Mother testified that the last time she saw Child was November 2013. Mother stated she showed up to the visitation at Frost's office and Paternal Grandmother was there with Wife. She was pregnant with Bob and felt intimidated by Paternal Grandmother's presence because she believed Paternal Grandmother has problems with her. Mother also talked about her personal issues with Frost and a complaint she filed against Frost with the state licensing board because Frost appeared to be sleeping during the visitation sessions. [5]Additionally, Mother stated that Frost has yelled at her in front of Child and allowed Child to be dropped off late and picked up early from visitation, depriving Mother of her full time with Child.

         Mother claimed her "soul was tortured not seeing [Child]." She also testified that she had never been involved with child protective services regarding Bob and the assault with her sister, Beth, occurred before she was pregnant with Bob. Mother said it hurt her that Paternal Grandmother considered Wife to be Child's mother and Mother would have never tried to cut Father out of Child's life. Mother believed that there was no need for Paternal Grandmother to be a conservator for Child anymore. Mother also testified that she was seeing Dr. Raul Capitaine, a psychiatrist, for her mental issues and took medication for the anxiety she suffered being away from Child.

         On cross-examination, Paternal Grandmother's counsel introduced tax returns and questioned Mother's income stream. Mother stated that Bob's father assisted her with bills when necessary. Regarding her erratic behavior, Mother explained that in 2010, she was having a breakdown. Mother admitted to going to Paternal Grandmother's place of business and sending harassing voicemails to Father. Mother stated she attended therapy twice a month and Alcoholics Anonymous meetings following those incidents. Mother also relayed that the altercation between Father, Wife, and herself was in relation to Child telling Mother she was not being fed. Mother testified that she did not visit Child for six months when Adams was the appointed supervisor because she could not afford the visitation fee and she stopped visiting with Frost to avoid confrontations with Father's family and Frost.

         Father's counsel questioned Mother regarding the 2014 motion to modify she filed asking the trial court to remove Frost from supervising visitation and her filing of the notice of non-suit. Mother stated she was not aware of the non-suit and hired her current counsel to get another hearing on her motion to modify. Mother also admitted she was aware of the court orders and the restrictions and stated that is why she felt she could not be around Child. Mother stated she thought calling or writing Child would violate the no-contact order with Father's family and that she did not want to cause trouble. Mother stated her only criminal conviction was for obstruction of a highway, even though she was asked about an incident in 2015, where a former friend tried to assault her and the police were called. Mother explained her friend had recently been released from prison and needed a place to stay, so she tried to help her friend out. However, after the incident, Mother evicted her friend.

         2. Father and Paternal ...


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